Sunday, June 4, 2017

Physicians, Firearms, and Free Speech

The majority’s well-reasoned decision, in fact, does just that. By relying on heightened rather than strict scrutiny, the majority affirmed that laws regulating physician speech must be designed to enhance rather than harm patient safety. The majority took this mandate seriously and required the state to show some meaningful evidence that the regulation was apt to serve the state’s interest in protecting patients.

The state could not do so for two reasons. First, the decision to keep a gun in the home substantially increases the risk of death for all household members, especially the risk of death by suicide, and particularly so when guns are stored loaded and unlocked, as they are in millions of homes where children live. Second, the majority of U.S. adults who live in homes with guns are unaware of the heightened risk posed by bringing guns into a home. Indeed, by providing accurate information about the risks created by easy access to firearms, as well as ways to modify that risk (e.g., by storing guns unloaded and locked up, separate from ammunition), a physician’s counseling can not only enhance a patient’s capacity for self-determination, but also save lives.

Given the right to provide such counsel, professional norms recognize the responsibility to do so. Fulfilling this obligation, however, may not be easy, since the chief impediments to doing so — and to doing so effectively — are not and never have been legal barriers. Indeed, the court’s welcome ruling does not ensure that most clinicians will honor this hard-won victory by exercising their First Amendment rights.